The Democrats' Supreme Conundrum

By E. J. Dionne Jr.By E. J. Dionne Jr.August 30, 2005

Reports that Senate Democrats are deeply divided over how to deal with the Supreme Court nomination of Judge John Roberts both oversimplify what's happening and underestimate the conundrums the party faces.

Democrats are less divided than they are uncertain. They worry about doing too little to challenge Roberts, but they also doubt their capacity to stop his nomination.

Most Democrats are certain that Roberts is significantly more conservative than Justice Sandra Day O'Connor, whom he would replace, and that he will push the court to the right. But they wonder whether that alone can justify a full-fledged fight against him, let alone a filibuster.

Democrats who have studied tapes of Roberts's past congressional testimony have concluded that the nominee is skilled at good-natured evasion. "If he performs as opaquely as he did the last time," said one Democratic staff member close to the process, "he'll probably have the support of the vast majority of Republicans, and Democrats won't have anything to hang on to."

Roberts is also helped by the goodwill he has courted over the years in the Washington legal establishment, which is wary of having his appointment blocked on ideological grounds. "It's as if he has been planning for this moment all his life," said one Washington lawyer. Said another: "There aren't enough hours in the day for anyone to have had as many lunches with Democratic lawyers as Roberts has."

Yet many Democrats are frustrated over the difficulty of establishing exactly what kind of conservative Roberts is -- or, in the case of liberal groups firmly opposed to his nomination, of proving that Roberts is still the conservative ideologue who emerges from his memos as a young Reagan administration official on matters such as civil rights, disability rights and the right to privacy. If trying to stop Roberts is a short-term political risk, letting him through without a fight might be a long-term risk to the judicial principles that liberals care about.

Roberts would not only immediately shift the balance on the court, he is also a potential nominee for chief justice, a post in which his political skills could allow him, in tandem with another Bush appointee, to create a powerful conservative court majority for a generation. If Democrats fail to amass enough votes against Roberts in this round, they will be in a weak position to challenge him as chief justice in the next.

Democrats are also under pressure from their liberal allies to challenge Roberts by way of clarifying what they stand for. "One of the worst consequences politically would be for the majority of Democrats to vote for someone who, in the near future, would overturn well-established precedents on clean air, clean water, privacy, equal opportunity and religious liberty," said Ralph Neas, president of People for the American Way.

The alternative, Neas argues, is for Democrats to use the Roberts battle to delineate their differences with Bush and the Republican Party on such issues. Many Senate Democrats are eager to do just that, no matter how the Roberts fight comes out.

If there are any threats to Roberts's nomination, they will emerge during next week's hearings. Sen. Arlen Specter, chairman of the Judiciary Committee, has made clear in two letters to Roberts that he intends to press the nominee for his views on past Supreme Court decisions that Specter sees as having "usurped congressional authority." Specter highlighted areas of particular concern to Democrats, including disability rights, legislation on crimes against women and other issues involving the Constitution's commerce clause.

The Pennsylvania Republican's commitment to joining with the Democrats in exploring Roberts's views in turn raises the possibility of a backlash if the nominee sidesteps too many questions. The backlash could intensify if the White House continues to resist Democratic requests for some of Roberts's writings while he was an executive branch appointee.

In the meantime, Democrats will be challenging Republican claims that in dodging questions, Roberts would be following the example of Justice Ruth Bader Ginsburg, who declined to answer certain inquiries about her legal views during confirmation hearings in 1993. Democrats will argue that Ginsburg had a far more extensive record of public writings than Roberts does and that she did not skirt all questions about her views. Democrats will also argue that hers was a consensus nomination, since President Clinton cleared her appointment with Senate Republican leaders in advance, something President Bush did not do with Democrats on Roberts.

The paradox of the Roberts nomination is this: Roberts seems untouchable because of his shrewd and extensive preparation for this critical moment in his life. He could be derailed only if he proves to be too shrewd, too smooth and too evasive.